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Gustavo Zavala-Garcia enters the courtroom for his pretrial hearing in Judge Jack Skeen's court on Thursday March 7, 2019. Zavala-Garcia was indicted in 2017 and faces a capital murder charge. (Sarah A. Miller/Tyler Morning Telegraph)

Lawyers for capital murder defendant Gustavo Zavala-Garcia want to move his trial out of Smith County, preclude the state from seeking the death penalty, and suppress statements he made to law officers when he was arrested.

Zavala-Garcia's attorneys filed the application for motions last week, according to Smith County judicial records. 

Zavala-Garcia, 26, is accused of the 2016 killing of 10-year-old Kayla Gomez-Orozco, and if convicted on the capital murder charge could be sentenced to death.

The application said there is great prejudice against Zavala-Garcia and that he cannot obtain a fair and impartial trial in Smith County. 

The document asks the court to change the venue to a county that is free from this and other objections. 

Among affidavits included with the motion were ones from a Flint resident and another from a Bullard resident.

Both indicate the residents were familiar with the case and have heard and seen media coverage described as pervasive, prejudicial and inflammatory. They believe Zavala-Garcia cannot obtain a fair and impartial trial in Smith County. 

"I have personally heard numerous people state in their opinion that there does not even need to be a trial," a signed affidavit from a local defense attorney reads. "I believe that the vast majority of people in Smith County believe Mr. Zavala-Garcia is guilty of the murder."

The defense made several motions asking the court to preclude the death penalty in the case. 

Zavala-Garcia's defense attorney is asking the court to not seek the death penalty because Zavala-Garcia grew up in Mexico and an investigation into his life history is not possible due to the violence in Nuevo Leon and Guanajuato.

"Both of these regions have become so violent and dangerous that it is impossible to carry out a reasonably safe and constitutionally effective mitigation investigation there," the motion reads. "Proceeding to a capital trial without the benefit of a thorough mitigation investigation would violate Mr. Zavala-Garcia's Sixth, Eighth and 14th Amendment rights. In these exception circumstances, the only equitable remedy is to preclude the death penalty." 

The defense is asking the court to not allow statements Zavala-Garcia gave to authorities during his interrogation on Nov. 7, 2016, or to have a hearing prior to jury selection to determine if the statements should be allowed. 

The motion said police didn't entirely advise Zavala-Garcis of his right to end the interview at any time when he was read his rights.

The failure to meet all requirements renders Zavala-Garcia's statements inadmissible, the motion reads. 

The motion goes on to say Zavala-Garcia's waiver was not intelligent because the interrogating officer provided an incomprehensible and inadequate statement of the right to have a lawyer present to advise him prior to questioning. 

The document also said authorities failed to notify Zavala-Garcia of his right to seek consular assistance from the Consulate of Mexico and then refused to permit consular access until after Zavala-Garcia was interviewed about the murder, even though he was on an immigration detainer days prior to the seven-hour interrogation. 

The motion said the Consulate of Mexico in Dallas wasn't notified of Zavala-Garcia's detention until Nov. 10, 2016, when the office received a letter from the Smith County District Attorney's Office. 

The motion included a statement from an employee of the Consular Protection Department who said he learned about Zavala-Garcia's Nov. 6, 2016, arrest from a media report.

"The following day, I traveled to Smith County, pursuant to the consulate's protocol of providing immediate assistance to detained Mexican nationals," the statement reads. 

The statement said the employee from the consulate did not see Zavala-Garcia until about 8:30 p.m.

"The failure to advise him of his right to consular notification is incompatible with international law," the statement reads. 

Zavala-Garcia's next court appearances are set for April 11 and May 2. The court anticipates sending jury summonses in May. Jury selection is set to begin June 6. 

Zavala-Garcia is accused of killing Kayla in November 2016. He was related to her by marriage and he was among the last people to see her before she went missing Nov. 1, 2016, from the foyer of Bullard First Assembly on U.S. Highway 69.

Her body was found four days later in a well on the property where Zavala-Garcia lived, in the 22100 block of Farm-to-Market Road 2493 (Old Jacksonville Highway) in Bullard.

It is unclear what caused her death, and at the time the indictment was released, then-District Attorney Matt Bingham declined to comment, citing a restrictive and protective order in the case.

In the indictment, prosecutors contend Zavala-Garcia attacked Kayla and sexually assaulted or attempted to sexually assault her after her kidnapping.

Prosecutors also contend he struck Kayla with and against a blunt object, asphyxiated her and drowned her.

Crime and Breaking News Reporter

I started working at the Tyler Morning Telegraph in June 2016. I am a retired U.S. Air Force Sr. Master Sergeant. After a 21-year military career, in Security Forces, the military police of the Air Force, I went back to college and studied journalism.

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